DeBruyn v. Michigan, State of

Filing 2

OPINION AND ORDER DISMISSING CASE as duplicative, dircting the habeas petition to be filed in a prior case, denying a certificate of appealability, and denying leave to proceed in forma pauperis on appeal. Signed by District Judge Gershwin A. Drain. (DPer)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CODY JAMES DEBRUYN,
Petitioner,

Case No. 20-cv-11664

v.

U.S. DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

STATE OF MICHIGAN,
Respondent.                           
______________                              /      

OPINION AND ORDER DISMISSING THE HABEAS CASE AS
DUPLICATIVE, DIRECTING THE HABEAS PETITION TO BE FILED IN
A PRIOR CASE, DENYING A CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner
Cody James DeBruyn (“Petitioner”) challenges his 2015 Livingston County Circuit
Court guilty plea convictions and sentences for armed robbery, first-degree home
invasion, four counts of unlawful imprisonment, five counts of assault with a
dangerous weapon, larceny from a building, larceny of a firearm, and 13 counts of
possession of a firearm during the commission of a felony.
Petitioner, however, has already filed a federal habeas action challenging the
same convictions and sentences in federal court. See DeBruyn v. State of Michigan,
No. 2:17-CV-14131 (E.D. Mich.) (Tarnow, J.). In that case, the Court stayed and
administratively closed the case so that Petitioner could return to the state courts to
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fully exhaust state court remedies for all his intended habeas claims. Instead of
moving to reopen that case to proceed on an amended petition, Petitioner filed the
instant habeas petition.
The instant action must be dismissed as duplicative and successive to
Petitioner’s stayed habeas action. See, e.g., Flowers v. Trombley, 2006 WL 724594,
*1 (E.D. Mich. 2006); Harrington v. Stegall, 2002 WL 373113, *2 (E.D. Mich.
2002); see also Davis v. United States Parole Comm’n, 870 F.2d 657, 1989 WL
25837, *1 (6th Cir. 1989) (district court may dismiss habeas petition as duplicative
of pending habeas petition when second petition is essentially same as first petition).
Petitioner’s pleadings should be submitted in his previously-filed habeas case.
Petitioner may not challenge the same convictions in two different habeas actions.
Accordingly, the Court DISMISSES WITHOUT PREJUDICE this case. The
Court DIRECTS the Clerk’s Office to re-file the instant habeas petition in No. 2:17CV-14131 for further consideration. The Court makes no determination as to the
merits of Petitioner’s claims. This case is closed.
Before Petitioner may appeal, a certificate of appealability must issue. See 28
U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability may
issue only if a petitioner makes “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). When a court denies relief on
procedural grounds without addressing the merits, a certificate of appealability
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should issue if it is shown that jurists of reason would find it debatable whether the
petitioner states a valid claim of the denial of a constitutional right, and that jurists
of reason would find it debatable whether the court was correct in its procedural
ruling. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Reasonable jurists could
not debate the correctness of this Court’s procedural ruling. Accordingly, the Court
DENIES a certificate of appealability. The Court also DENIES leave to proceed in
forma pauperis on appeal as any appeal from this non-prejudicial dismissal would
be frivolous and cannot be take in good faith. See Fed. R. App. P. 24(a).
IT IS SO ORDERED.

s/Gershwin A. Drain__________________
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE
Dated: July 7, 2020

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
July 7, 2020, by electronic and/or ordinary mail.
/s/ Teresa McGovern
Case Manager

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